Michigan Criminal Lawyer Blog

Articles Posted in Probation

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A recent storyline on the Shotime series ‘Shameless‘ has focused on the show’s protagonist being charged with a crime for the first time. Fiona Gallagher, Shameless’ lead played brilliantly by Emmy Rossum, is charged with narcotic possession and child endangerment when a child in her care accidentally ingests drugs at her home. In my opinion, the portrayal of the indignities she suffers and choices she is faced with are for the most part realistic depictions of a first time offender’s interaction with the criminal justice system. I think this storyline is laudable, because it is an aspect of the law often overlooked in popular culture (TV shows and movies tend to focus on corporate legal proceedings and capital crimes it seems).

When Fiona is arrested, she is brought to jail awaiting her arraignment. Shameless unflinchingly outlines the discomfort and invasion of privacy one endures in jail. Something I hear almost every day in my office is ‘One night was enough, I will never go back.’ The arraignment is shown next, accurately so as well. Fiona is unable to retain counsel so her bond ends up being set high. Bond, for those who don’t know is an insurance policy that you will return to court for future dates. I’ve found that people who retain counsel have a better shot at getting a reasonable bond, even where they are charged with a felony.

Fiona then struggles with her public defender. While the public defender seems very well versed in nuances of Fiona’s charge, she’s spread thin. This can certainly happen in real life. Public defenders can get very large caseloads that they have to stay competent on and split their time between. There are a lot of capable public defenders, much like Fiona’s, but access to them can be a real issue as shown in Shameless.

JUSTICE.gifAbdo Law Firm prides itself on empathy, understanding, personal service, and striving for the optimal resolution of all legal matters that we take on. We are entering our fourth year with Matthew as a partner, and are continuing to grow. We always looking to hone our skills and engage challenging issues. This year we have had hundreds of satisfied clients, each case is very important to our Firm. The ‘Notable Cases” series is intended to share with readers cases that had complex legal and factual questions. ‘Winning’ in law is not always black-and-white concept. In some cases, a win is helping a guilty client reach a best-case-scenario disposition of their case (reductions, keeping charges off their record, and reducing jail/minimizing probationary terms). In other instances, a win is a dismissal or NG verdict. With every new case, we sit with our clients and determine exactly how we can win and the best means of reaching that objective. Read below to learn more about some our Firm’s more demanding cases and the tactics we employed defending our clients.

Sterling Heights: Moving Violation Causing Death

In the summer of 2012, we were approached by a client who was being charged with Moving Violation Causing Death. The client was in a situation where a criminal misdemeanor would have cost her job, and moreover harsh severe license sanctions. The facts were as follows. The client was backing from her driveway when her car made contact with a bicyclist, the bicyclist died as a result. Nonetheless, our client maintained she was backing up slowly and never saw the bicyclist until she heard contact. There were no third-party eye witnesses and all of the evidence corroborated the client’s rendition of the facts. There was no exterior damage done to the car.

image.pngCooperation, Undercover Drug Deals, Snitching: Using the little fish to get the big fish.

We have found that our clients charged with drug crimes experience a state of insecurity and despair when it comes to doing undercover work or cooperating with the police. This is something that is outside of the comfort zone for nearly everyone, especially the family members of our clients faced with this dilemma.

The classic predicament: Should a person engage in undercover drug deals or hire a lawyer for advice and face the criminal charges in the court system?

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This is the most frequent question that lawyers receive from their clients, “Am I going to jail?”

Most people being charged with a crime for the first time are not familiar with the justice system and do not know what to expect from their case. For the most part, first time misdemeanor offenders who are compliant with their bond conditions are not looking at serving time in jail. The exaggerated fear of jail is often what causes defendant to avoid legal obligations, skip court dates, evade law enforcement, and ironically is what lands them in jail. If you’re being charged with a misdemeanor and are scared and anxious, it is most likely more manageable than you think. This article gives an overview of whether or not a defendant should be anticipating jail time in their misdemeanor criminal case. Generalizations made here apply primarily to experience in Macomb County, though our office has found the following to be true throughout its practice in Metro Detroit.

An attorney cannot ethically guarantee a result in a criminal case. The bottom line is that nobody owns the judge. However, the reality, based upon our experience, is that jail is seldom imposed upon individuals convicted of misdemeanors in the District Courts.

There are numerous exceptions which will explained further below.
Unlike their Circuit Court counterparts, District Courts do not have sentencing guidelines. This gives District Court judges very broad discretion in fashioning sentences. This usually means that case strategy is best tailored to the individual policies of the specific judge that will be sentencing our office’s defendant. First time offenders, in just about all cases, are probably NOT looking at jail for the following offenses.

Drunk driving
Operating under the influence of drugs
Retrial fraud
Misdemeanor assault crimes/domestic violence
Driving while license suspended
Possession of marijuana/paraphernalia/use of marijuana
Disorderly conduct
Minor in possession/ open intoxicants
Malicious destruction of property
Traffic misdemeanors
Misdemeanor theft/ fraud crimes

In just about all of the above circumstances the offender will be looking at a probationary term. Broadly speaking one year of probation should be anticipated. Sometimes the court will depart from that for the better or worse. Most of the Districts in Macomb impose one year probation for first offense misdemeanors. Some of the courts in Oakland County impose longer probation terms. Moreover, most first time offenders (excluding DUIs and traffic offenses) are eligible for some type of diversionary program that will keep their records clean. While jail is not necessarily on the table in most misdemeanor cases, it is our function to minimize the terms and conditions of probation.
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PT blog picture.jpgThis year, we have published several blogs dedicated to “frequently asked (criminal law) questions”. Whenever possible, we endeavor to avoid legalese by providing articles in layman’s terms. The focus of this blog is pretrial conferences in Macomb County District Courts.

What is a pretrial conference?

A pretrial conference is a meeting that is attended by the attorneys for the parties in a criminal or civil case. The major purposes of a pretrial conference are to facilitate resolution of a case, management of a case for trial or management of a case regarding pertinent issues (as listed below). A pretrial conference is scheduled after either a criminal or civil case is filed with the court, a case number and a Judge are assigned. In Macomb County, criminal pretrial conferences are held soon after the arraignment. For misdemeanors, which occur in Macomb County, the pretrial conference will always be held at the district court (click here for complete listing of links to Macomb County District Courts). Felony pretrial conferences can occur on the date scheduled for a preliminary examination and again after the case is bound over to the circuit court. A person charged with a crime (the defendant) is required to be present on the date scheduled for pretrial conference. However, he or she is usually not allowed in the conference room with the attorneys. On the other hand, police officers and victim’s rights advocates with court business are allowed in the conference room. Likewise, an alleged victim may be present at the pretrial conference as the prosecutor must obtain the victim’s consent for a plea bargain in most criminal cases.

Warren-Police-cars-full.jpgMany of our blogs explore criminal and drunk driving issues within the realm of our law firm’s expertise. Others are about the Courts where we frequently practice law. This blog is about the 37th District Court where we regularly provide legal services to our clients who are charged with traffic offenses, criminal (felony or misdemeanor) and OWI cases arising out of Warren and Centerline.

The 37th District Court has two locations which are located in the cities of Centerline and Warren. (MAP OF WARREN) The jurisdictional boundaries of these Courts covers 36 square (from 8 Mile Road to 14 Mile Road and from Hayes to Dequindre). South of 8 Mile Road is the City of Detroit and West of Dequindre is the County of Oakland. Within the boundaries of the 37th District Court are major Macomb County roads, the I-696 expressway, industrial centers, General Motors Tech Center, Automobile Dealers, over 100 restaurants and retail establishments.

The Warren Police Department (WPD) is located directly behind the 37th District Court. The WPD is one of the most active law enforcement agencies in Macomb County with a major detective bureau, air force (helicopter) motorcycle and traffic patrol squad. The detective bureau has a drug enforcement team as well as other units which engage in various undercover operations including cracking down on prostitution. The Michigan State Police also have a presence in Warren as the law enforcement entity responsible for patrolling I-696 expressway.

abdo law firm.bmpThe Abdo Law Firm, established more than 30 years ago, prides itself on personal service, professionalism, empathy, and most importantly RESULTS. The purpose of this blog is to share some notable success stories that our office has had since Matthew Abdo has joined the Firm. In all of our cases, hundreds a year, we fight to get charges reduced or dismissed and we always push to eliminate or minimize jail time. Though all of our cases are important to us, beneath are some where we feel we achieved exemplary outcomes.

Charge: Home Invasion 3rd Degree / Malicious Destruction of Property Max. Jail: 5 years Court: 41-A District, Shelby

In this instance, Cy was able to negotiate a resolution whereby the original charges were dismissed in lieu of a plea to Entering Without Permission. This is a notable result not only because a 5 year felony was reduced to a misdemeanor and the client did not have to serve any jail time, but because he will eligible to have this off his record after successful completion of probation.

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What is EtG?

Ethyl Glucuronide (EtG) is a metabolite of beverage alcohol (ethanol), which means that it is used by the body to break down alcohol in the system. According to the drugtestingnetwork.com, the presence of EtG is a conclusive sign of recent alcohol consumption.

What is an EtG Test?

The EtG test, which can be implemented by a Court for a variety of reasons, is able to detect alcohol in a person’s system when a standard breathalyzer is not sufficient. Ethyl Glucuronide is detectable for up to 80 hours after an individual stops drinking, but can vary depending upon the person’s metabolism and the amount of alcohol that was consumed.

The EtG Testing Process (provided by uatests.com, a testing facility)
EtG testing is a process similar to other lab-based drugs of abuse testing. The following steps are typically followed:
Step 1: A chain of custody form is completed
Step 2: The subject voids into a standard collection cup. The temperature of the urine is checked, using a temperature strip on the collection cup, to assure it is a valid sample.
Step 3: A urine specimen syringe device is used to collect a sample of the urine.
Step 4: The syringe device, and related paperwork are sent to the lab. This is easier, cleaner and less expensive than sending a bottle of urine.
Step 5: The test samples are shipped to the lab. The most economical and effective method of getting your sample to the lab will depend on your location.
Step 6: Results are typically reported within three days of receipt at the lab.

Why is the EtG test ordered?

Individuals on probation for a criminal offense are sometimes subjected to random alcohol testing, which dictates that they blow into a portable breathalyzer. This test will only show the alcohol (ethyl alcohol) which remains in the bloodstream and is expelled as vapor from the lungs. Therefore, this test will only give information on whether or not the individual has drank alcohol within hours of taking the test.

Under certain circumstances the Court will order an EtG test for someone who is prohibited by law from consuming alcohol, based on an alcohol-related offense (usually drunk driving). The test is also used to screen for drinking problems, intervention evaluation, employment purposes and to motivate changes in drinking behavior.

Is the EtG Test reliable?

According to the Substance Abuse and Mental Health Service Administration, the EtG test is inaccurate and may actually be unreliable. The SAMHSA discusses the test’s sensitivity to even small amounts of alcohol that can be present in daily-use items. Examples include hand sanitizer, hair spray, laundry detergent, aftershave and even some cosmetic items. The information provided in the SAMHSA advisory notice led the U.S. Department of Health to deem the test “experimental”. The EtG test can produce positive results when an individual is simply exposed to any number of products which contain ethanol.

Despite EtG testing’s scientific unreliability, the test continues to be widely-used across the country. For this reason, our law firm is against the use of EtG tests.
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If you spend enough time in the back of a court room you will hear a few common explanations for positive drug and alcohol tests. Often when faced with a probation violation (or show cause while on bond, or if you are appealing to get your license back) defendants/petitioners will attempt to offer an innocent reason for their positive test. What defendants often do not know, that practicing attorneys do, is that Judges have heard it all. While our strategy varies from case to case – we advise that our clients NEVER* to use the following explanations when standing in judgment. Probation violation hearings are oftentimes much more serious than the underlying charge, as the Court will view the defendant as somebody who has been unable to prove themselves. Further, the sentencing Judge has the authority to sentence defendants to the maximum term of incarceration for the underlying charge. Beneath are some common excuses that come up in court. I’ve done some basic research into each of these explanations to see if they are at all supported by science, unfortunately it seems that they are not.

Excuse #1: ‘It Was Secondhand Marijuana Smoke’

When defendants test positive for THC they will sometimes tell the Judge that it was merely secondhand smoke. The Wikipedia page on drug tests (which has a wealth of other relevant information) states that “[t]his legend is technically true but highly misleading.” In order for a test to be positive from secondhand smoke one would have to be in a small unventilated space for hours with marijuana smokers. Based on this, it seems that somebody who is by marijuana smoke for a short amount of time would not have THC levels to yield a positive test. The possibility of a positive test aside, Judges hear this excuse all of the time and know it is just that. Dishonesty will always put you in a worse position than where you started.

Excuse #2: ‘The Cocaine Seeped Through My Skin’

Though a somewhat more isolated excuse, this still comes up time and time again. Karch’s Pathology of Drug Abuse indicates that a positive drug test from this type of exposure is unlikely unless dealing with a large quantity of cocaine. No surprise that Judges do not buy into this explanation. Beyond the fact that it most likely isn’t true, there isn’t a solid legal reason to be handling a large quantity of cocaine. As advised above, this is a defense that will get you nowhere and if anything will set you back should you use it before a Judge.

Excuse #3: ‘I Was Drinking Cough Syrup’

Perhaps the most common of all of the excuses, when defendants test positive for alcohol they often say that it is from drinking cough syrup. I couldn’t figure out the exact amount, but alcohol is listed as an inactive ingredient in Nyquil. Some sources stated as low as 10% and some as high as 25%. Nyquil can cause a positive alcohol test. However, it would seem that one would need to drink a large quantity to have a positive BAC or drink cough syrup immediately before blowing. MOST OF THE TIME, this excuse does not hold up. Oftentimes Judges see through this smoke screen and view the defendant as being dishonest and uncooperative. Further, a term of probation is typically no consumption of alcohol, because there is alcohol in some cough syrup this is a straightforward violation. HOWEVER, in some instances (specifically in license appeals at the DLAD) we have been successful in bringing this defense where there is corroborating evidence and/or a doctor’s note.
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